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Macon v. United Parcel Service, Inc.

United States Court of Appeals, Tenth Circuit

February 19, 2014

JEFF MACON, Plaintiff - Appellant,
UNITED PARCEL SERVICE, INC., Defendant - Appellee

Page 709

Appeal from the United States District Court for the District of Kansas. (D.C. No. 2:10-CV-02327-JAR).


Robert G. Harken (George A. Barton with him on the brief) of Law Offices of George A. Barton, P.C., Kansas City, Missouri, for Plaintiff - Appellant.

Laurence R. Tucker, Kansas City, Missouri, (Thomas B. Weaver, St. Louis, Missouri; Meredith J. Rund, Kansas City, Missouri, with him on the brief) of Armstrong Teasdale LLP, for Defendant - Appellee.

Before GORSUCH, EBEL, and O'BRIEN, Circuit Judges.


Page 710

O'BRIEN, Circuit Judge.

United Parcel Service (UPS) fired Jeff Macon for dishonesty. He claims this stated reason was a pretext; he was actually fired because he exercised his rights under the Kansas worker's compensation statute. In entering a summary judgment in favor of UPS, the district judge concluded the uncontested facts showed UPS to have honestly believed Macon was dishonest and discharged him in good faith. Irrespective

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of his complaints about pretext and disparate treatment by supervisors, the final decisionmaker for UPS, a regional independent union/management grievance panel, conducted an investigation and decided discharge for dishonesty was appropriate. Based upon that independent and informed decision, we affirm.


UPS hired Macon in 2001 as a part-time preloader. In 2004, he became a package car driver in UPS's Lenexa, Kansas, " North Center." In February 2007, he suffered the first of two separate work-related injuries to his right elbow. Both were covered under worker's compensation (WC). UPS paid about $678 to treat the first injury, which did not cause Macon to miss work. Later, on May 21, 2008, he suffered the second injury to his elbow, which required cortisone injections and surgery on August 21, 2008. He continued working up to the time of his surgery, but after surgery he was not able to return to work until December 4, 2008. UPS incurred $34,339 in costs for treatment of his second injury. Even after the surgery, Macon was unable to recover about 7% of the function in his right arm so UPS offered him a settlement of $6,976. On March 16, 2009, he accepted the offer.

Prior to his second injury and absence in 2008, Macon had only been disciplined once. That discipline commenced on April 30, 2008, about three weeks before his second injury. UPS sent him a termination letter for improperly signing for a customer's next-day air delivery. He invoked the union's grievance procedure, and on May 8, 2008, a local grievance panel, consisting of an equal number of union and management members, reduced the termination to a suspension.

Under the UPS grievance procedure, an employee may protest any discipline. A protest triggers review by a local grievance panel. If the grievance cannot be resolved at the local level, it escalates to a regional committee. The regional grievance panel also consists of an equal number of representatives from the union and UPS. But where, as here, the employee's home facility is in Kansas, the regional panel is made up of management representatives from Missouri or Nebraska and union representatives from a local union other than that of the grievant.

In deposition testimony relating to this case, both UPS management officials and union representatives testified about the May 2008 grievance proceedings. During those proceedings, they reviewed Macon's delivery records and observed that in addition to the improper signing for next day air, he was also improperly recording multiple stops at locations with a central receiving location like a mailroom. He was advised to stop doing so. As UPS explains, because " [t]aking credit for more stops increases a driver's 'planned day,'" this improper recording practice would undeservedly increase Macon's compensation. (Appellee Br. 16.) In response, Macon claims he was " never... trained on UPS' delivery and recording procedures" and says " UPS agreed to provide [him] with training on [its] delivery and recording method[s]." (Appellant Br. 10-11.)

After Macon returned to work in December 2008, he was repeatedly disciplined. Most of the incidents involved safety procedures and failing to properly document breaks and trips. On March 12, 2009, UPS sent Macon a termination letter for driving without a safety belt and leaving a package unattended. Later, on July 20, 2009, Macon's supervisor, Kelly Ceesay, issued a pending termination letter for safety-related infractions. Both terminations

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were reduced to suspensions by local grievance panels. Finally, on November 3, 2009, after a review of drivers' delivery records, Ceesay determined Macon again improperly took credit for multiple stops at locations with centralized package delivery. Although Macon claimed " he did not understand that he was improperly recording the stops" (App'x Vol. VII at 1146), UPS issued another termination letter. This time, the local grievance panel ...

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